When Judge O’Neill dissented from the order that set an execution date for Jeffrey Wogenstahl, he cited the botched attempt at executing Romell Broom as an example of why lethal injections are unconstitutional. Now a court ruling brings Broom closer to having to face this ordeal for a second time.

The ruling, passed by a divided Ohio Supreme Court last month, opens up what Austin Sarat calls:
“the nightmarish possibility that the state can proceed in a negligent manner in carrying out an execution and, if it fails in the first attempt, to try, try again.” Potentially the ruling could affect anyone on death row, including Jeff.

Not surprisingly, O’Neill dissents from this opinion too: ‘Any fair reading of the record of the first execution attempt shows that Broom was actually tortured the first time. Now we embark on the task of doing it again.’

O’Neill is incredulous that the majority base their decision on the 1947 Louisiana case of 17-year old African American Willie Francis, who, after a probable coerced confession and without being defended by a lawyer, was found guilty of murder by an all-male, all-white jury. When the first execution procedure failed to kill him, the US Supreme Court allowed a second execution.

As O’Neill so rightly says, it is shocking that a case so tragically lacking in due legal process should be relied upon to support future torture.

In a separate dissent, Judge French questions the majority’s assumption that Ohio has solved the problem of performing lethal injections competently: ‘Additional paperwork will not improve the execution team’s ability to insert an IV catheter. ’ She asks for an evidentiary hearing to adjudicate Broom’s petition.

It is likely that Broom’s case will now proceed to the US Supreme Court, which will then revisit its shameful ruling 60 years ago in the Francis case. We trust that it will outlaw any possibility of what the dissenting Justice in that case called ‘death by installments’. Standards of decency in 2016 demand no less.